Justice Minister Phil Goff's press statement accompanying the bill places great emphasis on the internet as an easy vehicle for trading illegal images and texts. So in the online environment, it's worth considering what other kinds of "knowledge" are involved.
In the wake of the David Young case, where a schoolteacher unsuccessfully claimed he was “just looking” at illegal images featuring children, a media release from the Department of Internal Affairs suggested recipients of spam who unintentionally have such an image fleetingly on their screens and in their cache need not fear the attentions of the censorship police.
Well, actually, the definitive comment, again from Phil Goff, was that unintentional reception of illegal material is “a defence”. This is hardly completely reassuriing, since a need for a defence implies there will be a charge, or at least a strong allegation.
A small pamphlet on the Scientific Software and Systems stand at a recent exhibition, promoting Mailsweeper, Mimesweeper and related products, is also pessimistic. It has “open me” on its front cover, followed on succeeding pages by “let me help you” and “you can trust me."
“And then I can destroy all your records, expose your confidential details, circulate some porn and wait for the court case!” shouts the inside copy in capitals, some of them red, before getting down to the lower-case sales pitch.
Clearly, if you’re selling spam-and-porn filters, you’re entitled to disbelieve and encourage your customers to disbelieve the official assurances. Even if receiving illegal stuff unintentionally is defensible, sending it unintentionally (after the hacker makes a "zombie" of your PC) may not be, the pamphlet implies.
The picture is even more confusing in view of a statement from Keith Manch, head of DIA’s Gaming and Censorship Division, that a “mistake” in intentionally downloading something the user didn’t realise was an objectionable file “is not a defence under the act”.
So, if a spammer sends you an ambiguously named file and you just look at it, find it to be child porn and delete it, you’re okay. But if you intentionally download it and find you’ve made a “mistake”, then you’re not okay. In fact you’re nominally a criminal, and it was your fault for requesting the download. You'd better hope you've deleted all traces of it.
This, needless to say, is not spelt out in the relevant legislation, nor in the current amendment bill. All these say is that lack of knowledge of a file’s objectionable status is not a defence, though it may be a reason for a lesser penalty. This covers the case where you know what the file contains, but claim not to know it’s illegal.